Shibu K.D. and Others v. The Kerala State Road Transport Corporation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **WP(C).No. 3635 of 2018** ## **PETITIONER(S)** - **1 SHIBU K.D., KADUVINAL HOUSE, IRINGOLE PO, PERUMBAVOOR, ERNAKULAM DISTRICT-683548.** - **2 BIJU C.A,** - **S/O AYYAPPAN, CHATHANKUDY HOUSE, VENGOOR PO, PERUMBAVOOR, ERNAKULAM DISTRICT-683546.** - **3 AJI C.A,** - **S/O AYYAPPAN, CHATHANKUDY HOUSE, VENGOOR PO, PERUMBAVOOR, ERNAKULAM DISTRICT. 683546.** **BY ADV.SRI.SAJEEV KUMAR K.GOPAL** ## **RESPONDENT(S):** **1. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, THIRUVANANTHAPURAM.695023.** **2. THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT PO, THIRUVANANTHAPURAM.695023.** **3. THE ESTATE OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT PO, THIRUVANANTHAPURAM.695023.** **4. THE ASSISTANT TRANSPORT CORPORATION, KERALA STATE ROAD TRANSPORT CORPORATION, PERUMBAVOOR.683542.** **BY SRI.P.C.CHACKO, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **PBS** **WP(C).No. 3635 of 2018 (D)** ## **APPENDIX** **PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF ORDER NO.ES2-017723/23/10/428 DATED 02.06.2010 IN RESPECT OF THE 1ST PETITIONER. EXHIBIT P2 TRUE COPY OF THE ORDER NO.ES2-010077/10/429 DATED 05.05.2010 WHEREBY STALL NO.3 WAS ALLOTED TO THE 2ND PETITIONER. EXHIBIT P3 TRUE COPY OF THE ORDER NO.AB6-23775/03 DATED 22.08.2003 WHEREBY STALL NO.6 WAS ALLOTTED TO THE 3RD PETITIONER. EXHIBIT P4 TRUE COPY OF THE ORDER NO.AB6-11324/03 DATED 22.8.2003 WHEREBY STALL NO.5 WAS ALLOTTED TO THE 3RD PETITIONER. EXHIBIT P5 TRUE COPY OF THE MEMORANDUM VIDE NO.ESI-010958/2011 DATED 05.04.2011,. EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 08.03.2017 ISSUED TO THE 1ST PETITIONER. EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 28.02.2017 ISSUED TO THE 2ND PETITIONER. EXHIBIT P8 TRUE COPY OF THE NOTICE ISSUED TO THE 3RD PETITIONER DATED 18.05.2017. EXHIBIT P9 TRUE COPY OF THE NOTICE ISSUED TO THE 3RD PETITIONER DATED 18.05.2017 IN RESPECT OF SHALL NO.5 EXHIBIT P10 TRUE COPY OF THE COMMON JUDGMENT IN WP(C) NO.8403 AND CONNECTED CASES. EXHIBIT P11 TRUE COPY OF THE ORDER NO.ES2/003106/2017 DATED 07.06.2017. EXHIBIT P12 TRUE COPY OF THE COMMON JUDGMENT IN WP(C) NO.19871 OF 2017 AND CONNECTED CASES. EXHIBIT P13 TRUE COPY OF THE REPORT NO.PE-10109/2016/CRE DATED 10.02.2017. EXHIBIT P14 TRUE COPY OF THE JUDGMENT IN WP(C) NO.29448 OF 2017 DATED 16.11.2017. EXHIBIT P15 TRUE COPY OF THE ORDER DATED 29.01.2018 ISSUED BY THE 2ND RESPONDENT REJECTING THE REQUEST FOR RENEWAL OF LICENSE.** ## **WP(C).No. 3635 of 2018 (D)** **EXHIBIT P16 TRUE COPY OF THE MEMORANDUM DATED 24.11.2017 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P17(A) TRUE COPY OF THE CASH RECEIPT DATED 06.12.2017 ISSUED IN FAVOUR OF THE 1ST PETITIONER FOR STALL NO.12.** **EXHIBIT P17(B) TRUE COPY OF THE CASH RECEIPT DATED 06.12.2017 ISSUED IN FAVOUR OF THE 1ST PETITIONER FOR STALL NO.2.** **EXHIBIT P17(C) TRUE COPY OF THE CASH RECEIPT DATED 06.12.2017 ISSUED IN FAVOUR OF THE 2ND PETITIONER FOR STALL NO.3.** **EXHIBIT P17(D) TRUE COPY OF THE CASH RECEIPT DATED 06.12.2017 ISSUED IN FAVOUR OF THE 3RD PETITIONER FOR STALL NO.6.** **EXHIBIT P17(E) TRUE COPY OF THE CASH RECEIPT DATED 06.12.2017 ISSUED IN FAVOUR OF THE 3RD PETITIONER FOR STALL NO.5.** **EXHIBIT P18 TRUE COPY OF THE APPLICATION SUBMITTED UNDER THE RIGHT TO INFORMATION ACT.** **EXHIBIT P19 TRUE COPY OF THE ACKNOWLEDGEMENT REGARDING THE ACCEPTANCE OF THE APPLICATION.** ## **RESPONDENT'S EXHIBITS** - **EXHIBIT R1(A) TRUE COPY OF THE TERMS AND CONDITIONS FOR GRANTING LICENSE IN THE KSRTC BUS STATIONS ISSUED BY THE 2ND RESPONDENT DATED 7.12.2017** - **EXHIBIT R1(B) TRUE COPY OF THE DETAILS IN LICENSE FEE RECEIVED FROM THE NEWLY TENDERED STALLS ISSUED BY THE ESTATE OFFICER OF THE KSRTC DATED 17.2.2018.** - **EXHIBIT R1(C) TRUE COPY OF THE TENDER NOTICE DATED 2.2.2018 IN RESPECT OF STALL NO.2 ISSUED BY THE DISTRICT TRANSPORT OFFICER, PERUMBAVOOR.** - **EXHIBIT R1(D) TRUE COPY OF THE TENDER NOTICE DATED 2.2.2018 IN RESPECT OF STALL NO.2 ISSUED BY THE DISTRICT TRANSPORT OFFICER, PERUMBAVOOR.** **EXHIBIT R1(D) TRUE COPY OF THE TENDER NOTICE DATED 2.2.2018 IN RESPECT OF STALL NO.3 ISSUED BY THE DISTRICT TRANSPORT OFFICER, PERUMBAVOOR.** **EXHIBIT R1(E) TRUE COPY OF THE TENDER NOTICE DATED 2.2.2018 IN RESPECT OF STALL NO. 5 ISSUED BY THE DISTRICT TRANSPORT OFFICER, PERUMBAVOOR.** ## **WP(C).No. 3635 of 2018 (D)** |**EXHIBIT R1(F)**|**TRUE COPY OF THE TENDER NOTICE DATED 2.2.2018 IN RESPECT**| |---|---| ||**OF STALL NO.6 ISSUED BY THE DISTRICT TRANSPORT OFFICER,**| ||**PERUMBAVOOR.**| |**EXHIBIT R1(G)**|**TRUE COPY OF THE TENDER NOTICE DATED 2.2.2018 IN RESPECT**| ||**OF STALL NO.12 ISSUED BY THE DISTRICT TRANSPORT OFFICER,**| ||**PERUMBAVOOR.**| |**EXHIBIT R1(H)**|**TRUE COPY OF THE LICENSE AGREEMENT EXECUTED BY THE 1ST**| ||**PETITIONER WITH THE 4TH RESPONDENT ON 15.6.2016**| |**EXHIBIT R1(I)**|**TRUE COPY OF THE LICENSE DEED EXECUTED BY THE 3RD**| ||**PETITIONER WITH THE 4TH RESPONDENT DATED 22.8.2016.**| **/TRUE COPY/ PA TO JUDGE** **PBS 10/4/2018** ## **ANU SIVARAMAN, J.** # **= = = = = = = = = = = = = = = W.P(C).No.3635 of 2018** # **= = = = = = = = = = = = = = = = = = = Dated this the 05[th] day of April, 2018** ## **JUDGMENT** The petitioners have approached this Court with the following prayers: i. Issue a writ of Certiorari or other appropriate writs, directions or orders, calling for the records leading to Exhibit P-15 and P-16 and quash the same. ii. Declare that the petitioners are entitled to get the renewal of the license for the premises on compliance with the conditions enumerated in Exhibit P-5 and further that Exhibit P-16 is not applicable to the petitioners for the renewal of their licenses. iii. Issue a Writ of Mandamus or other appropriate writ, direction or orders directing the respondents to renew the licenses with respect to the respective shop rooms in occupation of the petitioners in the premises of KSRTC Bus Station, Perumbavoor in accordance with Exhibit P-5 tender condition. 2 W.P(C).No.3635 of 2018 2. Heard learned counsel for the petitioners and the learned Standing Counsel appearing for the respondent. 3. The case of the petitioners essentially is that they are licensees of stalls in the K.S.R.T.C Bus Station Perumbavoor. They contend that they had been granted licenses in terms of Ext.P5 norms for grant of such licenses to operate stalls in the premises belonging to the respondent Corporation. It is contended that, Ext.P5 had specific condition that the licenses of the respective stalls would be entitled for renewal of the period of licence on an annual increase of 10% of the licence fees, without conduct of a tender/auction. It is, therefore, contended that they are entitled to renewal of licenses from year to year, on the basis of Ext.P5, which also forms part of their contract. 4. It is stated that by Exts.P6 to P8, the petitioners were issued with notices, requiring them to vacate the premises. The notices were issued on the ground that the stalls were found in possession of other persons and that the petitioners had 3 W.P(C).No.3635 of 2018 sublet the stalls and had violated the terms and conditions of the agreement, entered into by them. It is stated that the said orders were challenged before this Court and by Ext.P10 judgment, this Court had directed to treat those notices as show cause notices and also directed that the petitioners objections are to be considered before orders are passed. It is stated that Ext.P11 order is passed, rejecting the request made by the petitioners. The issue was again agitated before this Court and by Ext.P12 judgment, there was a direction to the authorities to consider the claim of the petitioners, in accordance with law and to pass final orders on the objections preferred by the petitioners. It is stated that thereafter, Ext.P13 order was issued by the Superintendent of Police of the Director of Vigilance finding that the petitioners had sublet the premises. Petitioners again approached this Court seeking a consideration of the request for extension of period of licence in terms of Ext.P5. This Court by Ext.P14 judgment directed the consideration of the claim untrammelled by 4 W.P(C).No.3635 of 2018 Ext.P13. Thereafter, impugned order has been issued by the 2nd respondent stating that the petitioners are not entitled to extension of the period of licence which is under challenge. 5. The petitioners claim for continuance as licensees has been rejected by Ext.P15 order on the ground that the norms for granting licence had been revised limiting the period of licence to three years and providing for allotment only after conduct of auction. It is stated that the conduct of auction had resulted in huge financial gains to the Corporation and nothing stands in the way of licensees' participating in the auction. The stipulation with regard renewal of licence at 10% annual enhancement of the licence fees had been done away with. The request made by the petitioners is therefore rejected. 6. It is the case of the petitioners that the petitioners, having obtained possession of the stalls in terms of Ext.P5 norms, which were in force of the time when their licence agreement had been entered into. They are in no way affected 5 W.P(C).No.3635 of 2018 by the change in the norms. The provisions in the new norms that the licence would be granted only for the period of 3 years will not be applicable to the petitioners, because they are already licensees at the time when the new norms are brought into force. It is further contended that the agreements entered into by the petitioners, with regard to the licenses to conduct the stalls also contains stipulations to the effect that the conditions as contained in Ext.P5 would form part of the licence deed, the petitioners therefore remain uneffected by the change of the norms and that they would be entitled to extension of licence. 7. The learned counsel for the petitioners relies on a decision of the Apex Court in **Senior Divisional Commercial** v. **Manager and Others S.C.R. Caterers, Dry Fruits, Fruit Juice Stalls Welfare Association and Another [2016 KHC 6086]** to contend that, the non-renewal of existing licenses of stalls at Railway stations and compelling them to participate in the open bidding was held to be against the principles in 6 W.P(C).No.3635 of 2018 Article 14, Article, 19(1)(g), Article 21 and Article 38 of the Constitution of India. It is stated that the petitioners were held to be entitled to renewal of the stall licenses with nominal enhancement of rates. The petitioners contend that they are similarly situated as the petitioners before the Apex Court. The Apex Court in the said case held that the more humane and welfare approach to be adopted towards small scale operators. It is also held that the denial of renewal of licence would amount to deprivation of their right to freedom of occupation as well as the right to livelihood. The State is duty bound to provide adequate protection for the fundamental rights of the citizens as also provide them a means of livelihood. 8. A counter affidavit has been placed on record on behalf of the respondents contending that the petitioners had been allotted the stalls on the strength of the specified norms and they have absolutely no claim on the premises in question. It is stated that the period of licence in respect of all premises is fixed as three years by the Corporation and that 7 W.P(C).No.3635 of 2018 the decision taken by the Corporation to limit the period of licence as 3 years, even in existing cases is squarely applicable to the petitioners as well. It is stated that Ext.R1(h) agreement entered into by the petitioners themselves contain a specific clause, that all the petitioners will be bound to hand over the vacant possession of the stalls in question as and when the term period of the licence expires. It is stated that no vested right can be claimed by the petitioners that they will be permitted to continue on nominal enhancement of the licence fees, since it involves public fund and that the auction conducted in respect of the stalls occupied by the petitioners has generated much higher income when compared to the new norms, as specified in the counter affidavit. 9. It is further contended that Ext.P5 norms produced by the petitioner had changed and had been superseded by Ext.R1(a) norms dated 07.12.2017, which had been ratified by the Managing Committee of the Corporation. It is stated that Ext.R1(a) norms specifically provide for limiting the period of 8 W.P(C).No.3635 of 2018 **.** licence to 3 years 10. The learned Standing Counsel places reliance on the decision of this Court in W.P.(C) No.34833 of 2017 dated 13.11.2017 [ **Roshan Jacob** v. **Kerala State Road Transport Corporation]** , **Trivandrum Golf Club** v. **State of Kerala [2012 (2) KLT 996]** and the binding precedents of the Hon'ble Supreme Court reported in **Jagdish Mandal** v. **State of Orissa and Others [2007 (14) SCC 517]** and **JSW Infrastructure Limited and Another** v. **Kakinada Seaports Limited and Others [2017 (4) SCC 170]** to contend that Government tenders/contracts are essentially commercial contracts and interference in judicial review is limited to cases of arbitrary exercise of power which is absent in the instance case. 11. I have considered the contentions advanced on either side. It is clear that cogent consideration have weighed with the respondents in the matter of renewal of licenses. The financial aspect and the fetching of much higher rates in the auction cannot be said to be irrelevant, especially in view of 9 W.P(C).No.3635 of 2018 the present financial condition of the Corporation. 12. The contention of the petitioners is that the new norms will not be applicable to the petitioners case. The decisions cited by the learned counsel for the petitioners are not applicable in the instant case since the petitioners were allotted stall licenses in terms of agreement entered into with the Corporation. The Corporation had found that there was sub lease of the stalls in violation of the conditions of the contract. This Court, in Ext.P14 judgment found that the finding of sub lease cannot stand in the way of consideration of the petitioners claim for extension of period of licence. This claim has been considered in Ext.P15 and found that the period of licence has expired and no extension is possible. The decision of the Apex Court with regard to the extension of period of licence can have no application in a case of this nature. 13. Having considered the contentions advanced on either side and perusal of the documents produced, especially 10 W.P(C).No.3635 of 2018 Exts.R1(a) and R1(h) documents, I am of the opinion that the petitioners, who are licensees, cannot have a claim for renewal in contravention to the licence conditions currently in force in the K.S.R.T.C. The petitioners who are licensees would be entitled to hold the premises on licence only in consonance with the norms, which are in force. The KS.R.T.C has a specific case that the norms had been changed and the licenses are being allotted only for a period of 3 years at a time. It is to be noted that the provision with regard to renewal of licenses is absent in Ext.R1(a) renewal of norms as well. It specifically states that it is issued in supersession of the existing norms. 14. In the above view of the matter, I am of the view that the contentions raised by the petitioners, being existing licensees, that their licenses are not liable to be terminated, cannot be accepted. Fact remains that Ext.P5 norms itself provides a condition that the petitioners will be bound by the conditions and the agreement to be executed with the Corporation. 11 W.P(C).No.3635 of 2018 15. In the instant case, the Corporation has a specific case that the petitioners are not conducting the stalls in question and that other persons were found in occupation of the stalls. In the above view of the matter, I am of the opinion that, the jurisdiction of this Court is not liable to be exercised in this matter. Though the learned counsel for the petitioners sought time to vacate the premises in question, I am not inclined to grant the relief since there is nothing to show that the petitioners are actually in possession of the stalls. This writ petition fails and accordingly it is dismissed. Sd/- **ANU SIVARAMAN JUDGE** _SB/06/04/2018_ _True Copy_ _P.A. to Judge_